RICHARD AUCIELLO vs. JOHN J. MISKELL and JUDITH A. MISKELL.

Plaintiff is the owner of a parcel of land in Cambridge, shown as Lot B on a plan [Note 1] dated December 1, 1928 and recorded in Book 5318, Page 245 at the Middlesex South Registry of Deeds. [Note 2] He asks the Court to determine the rights of the parties in a ten foot strip of land located along the westerly boundary of Lot A designated on the plan as "Passageway 10 feet wide to be used in common for the benefit of Lots A and B", to order the defendants to remove a gate placed by them across said passageway as shown on Appendix A and to level off the passageway surface altered by defendants. In addition plaintiff prays that the Court order the defendants to pay all costs and reasonable attorney's fees.

The defendants, the owners of Lot A shown on Appendix "A", in their answer admit that they have installed a gate across the passageway but deny that it obstructs plaintiff's use of the passageway; admit that they have altered the surface of the passageway causing it to drop five inches into dirt at the northerly end of the way but deny that this impedes plaintiff's use of vehicles on the passageway. They further answer that the changes made to the passageway were with the consent of plaintiff's predecessor in title and that since plaintiff purchased Lot B with this knowledge that such changes had already been made he is guilty of laches for not proceeding sooner. They likewise seek an order requiring plaintiff to pay all costs and reasonable attorney's fees.

Trial was held on the matter July 22, 1980 at which a stenographer was sworn to take and transcribe the testimony. Four witnesses testified and twelve exhibits were entered into evidence which are incorporated herein for the purpose of any appeal.

Upon all of the evidence the Court finds the facts to be as follows:

1. Plaintiff acquired title to Lot B, on which is located a six family dwelling, by a deed from his sister Esther F. Auciello dated August 20, 1979 recorded in Book 13772, Page 120 (Ex. 1). This deed expressly provides that the "premises are conveyed subject to and with the benefit of all passageway rights of record so far as the same are now in force and applicable."

2. This same provision is found in all the deeds in plaintiff's chain of title commencing with the deed from Harry Bond et ux to Granada Wines, Inc. dated May 31, 1946 (Ex. 7) and thence in the following deeds:

Granada Wines, Inc. to Independence Realty Corp. dated Jan. 31, 1955, recorded in Book 8405, Page 439 (Ex. 6):

Independence Realty Corp. to Saverio Auciello et ux, dated July 25, 1956, recorded in Book 8776, Page 39 (Ex. 5);

Saverio Auciello et ux to The Alessio Realty Co., Inc. dated Nov. 30, 1971, recorded in Book 12127, Page 665 (Ex. 3);

The Alessio Realty Co., Inc. to Saverio Auciello et ux, dated October 23, 1976, recorded in Book 13088, Page 167 (Ex. 4);

Saverio Auciello et ux to Francesca Auciello (their daughter) dated May 17, 1978, recorded in Book 13443, Page 12 (Ex. 2).

3. Defendants acquired their title to Lot A by a deed dated February 1977 and recorded in Book 13146, Page 721. This deed also provides that the grant is subject to and with the benefit of passageway rights of record.

4. The passageway as shown on Appendix A has been used as a driveway and parking area by both plaintiff and defendants and their predecessors in title. The owners of Lot B used the passageway to drive their automobiles to the northerly or back portion of their lot.

5. At some time prior to July 1979 defendants Miskell placed a chicken wire fence across the passageway from their house to the fence on the westerly line. Evidently this was done to fully enclose their yard to keep a dog in. The father of the plaintiff herein and the then owner of Lot B, Saverio Auciello, removed the fence.

6. Prior to plaintiff Richard Auciello purchasing Lot B, defendant John Miskell asked for his permission to erect the gate across the passageway. The answer he received was "maybe".

7. Thereafter in July of 1979 while plaintiff's sister Esther still owned Lot B, defendant John Miskell did install a chain link gate across the passageway at a point approximately two car lengths north of Harvey Street as shown on Appendix A. A padlock was put on the chain link gate but was never locked. Defendant Miskell's stated purpose for installing the gate was to exclude from the property stray dogs, children on bikes and potential criminals and not the owners of Lot B.

8. There is no evidence that Esther Auciello, the then owner of Lot B or her father Saverio Auciello, the prior owner of Lot B, ever consented to the construction of the gate.

9. In July of 1979, throughout its length, the passageway consisted of old, cracked but sturdy hardtop and concrete slabs capable of supporting a large vehicle or truck. Defendant Miskell was desirous of replacing this and held a discussion with Saverio Auciello in which the latter finally declined to pay half the cost of repaving the passageway because his son Richard would soon be taking title to Lot B. Thereupon, Defendant John Miskell had asphalt laid on the southerly half of the passageway for a distance of about two car lengths so that defendants' automobile and perhaps one owned by a resident of Lot B could be parked there. The northerly half of the driveway was ripped out and grass was planted there in its stead. There is a drop of about five inches in the passageway at the point where the asphalt ends and the grassed portion begins.

The first question to be determined is the rights of the parties to the right of way. Both parties appear to have by their respective grants equal right to the use of the passageway shown on Appendix "A". Where an easement or property right is created every right necessary for its enjoyment is included by implication. Sullivan v. Donohoe, 287 Mass. 265 , 267 (1934). Ampagoomian v. Atamian, 323 Mass. 315 , 322 (1948). The right to have the passageway kept open for travel along its entire length and breadth is implicit in the parties' respective grants.

The second question to be determined is whether the installation of the gate and the use thereof is an obstruction of the right of way. Generally, if a right is created and nothing more appears from the deed ... the owner of a servient tenement may build over the way, or do anything else so long as he does not interfere with or obstruct the right of passage over the soil." Duncan v. Goldthwaite, 216 Mass. 402 , 403-404 (1914) quoting Crocker v. Cotting, 181 Mass. 146 , 151 (1902). The standard of reasonableness applies to the respective rights of the dominant and servient owners. Western Mass. Electric Co. v. Sambo's of Mass., Inc., 1979 Mass. App. Ct. Adv. Sh. 2453, 2463. That gates may be maintained by a servient owner over a right of way is recognized. But the power depends upon the circumstances. Merry v. Priest, 276 Mass. 592 (1931). See also Ball v. Allen, 216 Mass. 469 , 472 (1914). Whether or not the gates materially interfere with the use of the easement should be the determinant. See Western Mass. Electric Co. v. Sambo's of Mass., Inc. supra at 2455. Stucchi v. Cotonna, 1980 Mass. App. Ct. Adv. Sh. 333.

In the opinion of the Court the construction and use of the gates do materially interfere with plaintiff's right to use the easement. The gates are not at the end of the easement as it goes over defendants' land but rather two car lengths in from Harvey Street. To get to his back lot plaintiff (and his tenants) must stop half way in, get out of his car, open the gate, move the car ahead past the gate, get out of the car and refasten the gate (or in the alternative leave the gate open to incur the wrath at least of the defendants). If the gate is locked the plaintiff must remember to bring a key. This is not the way that the easement has been used from at least 1946 to date and constitutes an unfair burden on the plaintiff. In short it is a nuisance to compel him to open and shut the gate. The installation of this gate, locked or unlocked, across the middle of the passageway, constitutes an unreasonable interference with the plaintiff's right to travel the length of the way.

The next question to be decided is whether or not the changes in the physical condition of the way made by the defendants were proper. The rights of anyone entitled to use a private way to make reasonable repairs and improvements is well established in cases where the way is already in use. Guillet v. Livernois, 297 Mass. 337 , 340 (1937). But whether improvements made are reasonable in view of the equal rights of others is largely a question of fact. Guillet, supra at 341. In this case defendants have torn up the entire passageway, improved the surface of only the southerly portion causing an abrupt five inch drop in grade to the balance of the passageway which they have attempted to convert to a lawn. Automobile travel over the northerly half of the way is difficult. Such alteration is unreasonable in the opinion of the Court and it so rules.

Was the plaintiff guilty of laches here?

The Court answers in the negative.

Defendants claim that the plaintiff purchased Lot B with the actual knowledge that the gate had been installed and that alterations to the passageway had been made and was therefore guilty of laches in not bringing his complaint for eight months thereafter, on March 18, 1980. The determination of laches is one of fact, requiring consideration of all circumstances attendant on delay in bringing suit. Sanguinetti v. Nantucket Construction Co., 1977 Mass. App. Ct. Adv. Sh. 404, 418. There must be a showing that any delay operated to prejudice defendants. Blakeley v. Pilgrim Packing Co., 4 Mass. App. 19. In this case there is no such showing. The length of time taken to bring suit here cannot be considered unreasonable. To be guilty of laches there must also be a change in position caused by the delay. It does not appear that the defendants were induced to change their position or that their rights were affected, by failure to bring the suit at any earlier date, nor is there any evidence of omission or commission on the part of plaintiff prejudicial to the rights of the defendant. Albano v. Puopolo, 309 Mass. 501 , 510 (1941). Like Albano this case is not one where plaintiff stood by and let defendants put up buildings and incur liabilities.

Defendants have filed six requests for "findings of fact and rulings of law". Those numbered 1, 2 and 3 are granted. All others are denied.

To sum up the Court finds and rules that both plaintiff and defendants have equal rights to travel freely along the passageway's entire length and breadth; that defendants have, by installing the chain link gate across the passageway, unreasonably interfered with plaintiff's rights in the passageway; and that defendants have interfered with plaintiff's rights in the passageway by altering its surface as aforementioned. Consequently defendants are ordered to remove the gate or keep it permanently in an open position and to repair the northerly part of the passageway so that the entire length of the passageway is at one grade and of the same surface. The Court further finds and rules that plaintiff is not guilty of laches. Plaintiff is allowed only those counsel fees allowable as statutory taxable costs. G. L. c. 261, § 23.

Judgment accordingly.

exhibit 1